[1] In a case where an employee is entitled to claim annual leave allowance, the time when the right to use annual leave occurs (=the day after the completion of work for the first year before the previous year), and in a case where a labor relationship is terminated due to retirement before that, whether a claim for annual leave allowance may be made (negative)

[2] The case holding that in case where Gap et al. claimed annual leave allowances against Eul et al. on December 31 of the year in which he turns 61 years of age, where "the last day of December of the year in which he turns 61 years of age" provides that " Eul et al. were employed by Gap and worked as a street environmentalized source, and Eul et al. used special paid leave until December 31 of the year in which he turns 61 years of age, and Eul et al. claimed annual leave allowances against Eul et al., the case holding that since labor relations such as Eul et al. on December 31 of the year in which he turns 61 years of age are terminated as a matter of course, Eul et al. cannot acquire the right to annual leave allowances for the year in which he turns 61 years of age

[1] The annual paid leave under Article 60(1) of the Labor Standards Act is granted to a worker who has worked at least 80% for one year, and where the worker fails to use his/her annual leave within one year after acquiring the right to annual leave or is unable to use his/her annual leave any longer due to reasons such as retirement before one year elapses, he/she may claim the employer the annual leave allowance equivalent to the number of annual leave days. However, unless otherwise provided, the right to use the annual leave takes place after completing his/her work for one year in the previous year, and where the employment relationship is terminated due to retirement, etc., the right to use the annual leave may not claim the annual leave allowance as compensation for the right to use the annual leave.

[2] The case holding that in a case where Gap corporation's regular employment rules set forth in Gap corporation's regular employment regulations provide that "the last day of December of the year in which he turns 61 years of age" and Eul et al. retired from employment as a street environmental source, and Eul et al. used special paid leave as stipulated in the collective agreement until December 31 of the year in which he turns 61 years of age, the retirement date is January 1 of the following year, and sought annual paid leave allowances against Gap et al., the case holding that Gap et al.'s regular employment rules set the retirement age of the street environmental source as the last day of December of the year in which he turns 61 years of age, and barring any special circumstances, Eul et al. should naturally terminate the employment relationship by reaching the retirement age of 61 December 31 of the year in which he turns 61 years of age, and that the special paid leave as stipulated in the said collective agreement can not be viewed as 16th of the year in which he turns 16 years of age.

[1] Article 60(1) of the Labor Standards Act / [2] Article 60(1) of the Labor Standards Act

[1] Supreme Court Decision 2014Da23296, 232302 decided May 17, 2017 (Gong2017Sang, 1249)

Plaintiff (Appointed Party)

- Government City Facility Management Corporation (Attorney Park Jong-hee et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2016Na4045 decided October 13, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Panel Division of the District Court.

The grounds of appeal are examined.

1. The annual paid leave under Article 60(1) of the Labor Standards Act is granted to a worker who has worked at least 80% per year, and where a worker fails to use his/her annual paid leave within one year after acquiring his/her right to annual paid leave or is unable to use his/her annual paid leave any longer due to reasons such as retirement before one year elapses, he/she may claim the employer the annual paid leave allowance equivalent to the number of his/her annual paid leave days (see Supreme Court Decision 2014Da23296, 232302, May 17, 2017, etc.): Provided, That the right to use his/her annual leave shall be deemed to take place on the day following the completion of his/her work for the first year, barring any special provision otherwise, where his/her employment relationship is terminated due to retirement, etc., a claim for annual paid leave allowance cannot be made as compensation for his/her right to use the annual leave.

2. A. The reasoning of the lower judgment and the record reveal the following facts.

(1) The Plaintiff (Appointed Party) and the designated parties (hereinafter “Plaintiff, etc.”) retired from office under employment of the Defendant as a street environmental fine.

(2) Article 26 of the rules on the regular employment of the facilities management corporation at the time of the Government provides that “The last day of December of the year in which he/she becomes 61 years of age shall be the retirement age of the street environmental finer.”

(3) The collective agreement concluded between the defendant and the National Democratic Union Trade Union provides that the defendant shall grant 20-day special paid leave to street environmental fineers who retire at their retirement.

(4) The Plaintiff et al. used the special paid leave immediately before his retirement, and the special paid leave period was until December 31 of the year when he turns 61.

B. The lower court determined that the Plaintiff et al. had the right to claim allowances for annual leave on January 1 of the following year, on the grounds stated in its reasoning, on the ground that the last day of December of the year in which the Plaintiff et al. turns 61 years old was the day during the special leave period, and the actual retirement date should be deemed January 1 of the following year, and that the Plaintiff et al. continued to work in the year in which they turn 61 years old.

3. A. However, it is difficult to accept the above judgment of the court below for the following reasons.

(1) The rules on the regular employment of the facilities management corporation at the time of the Government set the retirement age of the street environmental finer at the end of December of the year in which it reaches the age of 61. Thus, barring any other special circumstance, the Plaintiff et al. shall naturally terminate the employment relationship after reaching the retirement age of December 31, 61, which reaches the age of 61.

(2) The special paid leave stipulated in the above collective agreement is specially granted to the street environmental US workers who retire under the age limit, and thus, it is provided under the premise that the street environmental US workers who turn 61 years of age are retired under the age limit in that year. Therefore, the mere fact that the Plaintiff et al. used the special paid leave by December 31 of the year when they turn 61 years of age cannot be deemed to have been deferred as of January 1 of the following year.

(3) If so, on December 31 of the year in which the Plaintiff et al. reached the age of 61, it is deemed that the employment relationship of the Plaintiff et al. naturally terminated. Therefore, the Plaintiff et al. cannot acquire the right to annual leave as consideration for the employment of the year in which he et al. reaches

B. Nevertheless, solely based on its stated reasoning, the lower court determined that the Plaintiff, etc. acquired the right to annual leave of absence for the year in which he reached 61 years of age, based on the premise that he/she acquired the right to annual leave of absence for the year in which he/she reaches 61 years of age. In so determining, the lower court erred by misapprehending the legal doctrine on the time of termination of labor relations and

4. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: omitted

Justices Park Sang-ok (Presiding Justice)